When disabled looks like DUI
(part 1 of 2)

By Chris Tisch, Times staff writer
In print: Friday, May 23, 2008

ST. PETERSBURG — Officer Michael Jockers thought the man in the Ford Explorer was under the influence of something.

Michael Loui's eyes were bloodshot. His speech was slurred. He swayed on his feet.

Loui told Jockers he had muscular dystrophy. Loui says the disease brings weakness to his arms and legs that caused him to flunk the field sobriety tests.

But Jockers, who has made more than 400 driving-under-the-influence arrests in a 17-year career, says he can tell the difference between disability and impairment.

He arrested Loui.

But three months later, the results of a urine test came back clean. Wednesday, prosecutors dropped the DUI charge.

Loui, 48, says he was arrested because of his disability. Jockers still thinks Loui was under the influence of something.

Who's right?

• • •

Loui, a Navy veteran from St. Petersburg who is on full disability, was driving in the 600 block of 38th Avenue N on the morning of March 4.

Jockers clocked him going 48 mph in a 35 mph zone. Jockers got behind Loui's Explorer and flipped on his emergency lights. The truck turned into a median lane but did not turn onto a side street while traffic was clear.

When the Explorer finally turned and stopped, Jockers saw Loui's eyes were glassy and watery. Loui says he told him he had allergies, though that's not noted in Jockers' report.

Jockers noted that Loui had a "blank expression" and had trouble getting his wallet from his front pocket and his driver's license from his wallet. He also fumbled in the glove box for his registration, the report states.

Jockers couldn't smell alcohol but wondered if Loui was on prescription drugs.

Jockers asked Loui if he had taken any drugs.

"Vicodin," Loui said, though he added that he hadn't taken a pill in a few days.

Jockers thought his speech was "slurred and thick-tongued," he noted in his report.

Loui called his chiropractor, who came and told Jockers that it was the disability making him act that way. Jockers responded that field sobriety tests would be the best determinant.

When Loui exited his truck, Jockers noticed he was swaying. Jockers performed a test of the eyes, which he believed showed signs of impairment.

When Loui tried to touch the tip of his nose, he hit the side, then slid his finger to the tip, which is a failure, Jockers noted. When Jockers asked Loui to tilt his head and recite the alphabet, Loui skipped the letter N and botched the end of the alphabet.

All those factors persuaded Jockers to make the arrest. He collected a urine sample.

Loui spent about eight hours in the Pinellas County Jail.

• • •

Loui and his lawyer, Frank McDermott, said the arrest never should have happened.

"If anybody's disabled, they should take that into account," Loui said.

McDermott said he doesn't think Jockers had probable cause to even perform field sobriety tests, let alone make an arrest. Loui had no previous criminal record in Florida and only minor traffic violations in Pinellas County, records show.

Dr. Valerie Cwik, the medical director for the Muscular Dystrophy Association, said she hasn't heard of symptoms being mistaken for impairment but sees how it could happen.

"When we're talking about muscular dystrophies, these are rare diseases, so to expect the police to have knowledge about the particular symptoms might be setting the bar a little high," she said. "That might be unreasonable."

McDermott said Loui is considering a lawsuit.

• • •

When analyzing urine in DUI cases, Florida looks for illegal drugs like cocaine, and many prescription drugs, including Vicodin. But the test does not look for some sleep aids, such as Ambien, or some other drugs that cause impairment.

Jockers thinks Loui was under the influence of a drug the test would not detect, something Loui denies. Jockers said he's familiar with muscular dystrophy. A child in the Cub Scout pack he once oversaw had it.

He factored in Loui's disability, but felt there was enough evidence to make the arrest.

"Mr. Loui showed classic signs of impairment," Jockers said. "I have a duty to the citizens to make these streets safe."

Jockers says he will write a letter to the state suggesting it review Loui's driver's license.

For his part, Loui says he can drive just fine.

--------------------------------------------------------------------------------

DUI Charge Against Man With Muscular Dystrophy Dropped
(part 2 of 2)

By STEPHEN THOMPSON | The Tampa Tribune

Published: May 22, 2008

CLEARWATER -- Prosecutors have dropped a drunken driving charge against a man afflicted with muscular dystrophy after the man's urine test came back negative for any illegal substances.

Michael Loui, 48, of St. Petersburg, was arrested by a St. Petersburg police officer on March 4. The Pinellas-Pasco State Attorney's Office dismissed the charge Wednesday.

"I believe we have a situation where there was a rush to judgment," said Loui's attorney, Frank McDermott. "There ought to be some training in place so not everyone who suffers from a disability gets arrested for DUI."

Traffic homicide investigator Mike Jockers was working a radar detail on 38th Avenue when he saw a black Ford Explorer traveling 48 mph in a 35-mph zone, according to a police report.

In the report, Jockers noted Loui's speech was "slurred and thick-tongued." Jockers noted there was no smell of alcohol on Loui's breath, and asked Loui if he had taken any medication, the report said. At first Loui said he had taken Vicodin earlier that morning for back pain, then said he hadn't taken any in a few days, the police report says.

A videotaped field sobriety test showed Loui failing some instructions, such as one telling him to recite the alphabet.

McDermott, Loui's attorney, said Loui told the officer he had myotonic muscular dystrophy and that he has a blank face and slurred speech as a result. Loui's chiropractor showed up at the traffic stop, and told Jockers the same thing, McDermott said.

In a motion McDermott filed to get the charge dismissed, he said, "Myotonic dystrophy is a disorder which keeps the muscles from relaxing normally after contracting.

"The muscles begin to waste away," the motion says "Patients who suffer from the disease have difficulty with walking and with finger and hand movements. They also may suffer from a dazed look or blank look to their face."

Scott J. Knoeppel, Loui's doctor at Bay Pines Veterans Administration Medical Center, wrote a letter that accompanied McDermott's motion.

"As long as I have known Mr. Loui he has always had a speech impediment which is believed to be congenital," Knoeppel said. His patient was diagnosed with myotonic muscular dystrophy in August 2007.

"Mr. Loui tells me that as part of his arrest he was given a field sobriety test in which he was asked to put his finger upon the tip of his nose repeatedly," Knoeppel said. "Due to his myotonic dystrophy I do not believe he would be able to pass this test and thus give the arresting officer the impression that Mr. Loui was impaired."

An April 10 report from the Pinellas County Forensic Laboratory showed a test on Loui's urine showed no presence of 10 specific drugs. The St. Petersburg Police Department, however, continues to stand by the arrest.

"He had all these impairment cues," said St. Petersburg Police Department spokesman Bill Proffitt. "If we were able to get a complete drug screen across the board, it might show some other drug." Drugs such as antidepressants and anti-anxiety drugs are not part of the forensic laboratory's 10-drug screen, he said.

Despite the decision by the state attorney's office, Jockers is going to ask the state department of motor vehicles to order that Loui be medically examined and be deemed fit to drive a car.

Reporter Stephen Thompson can be reached at (727) 451-2336 or spthompson@tampatrib.com.